Criminal Appeals from a Magistrate: Assurances Received

	Extract from Hansard Legislative Council 21 October 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Spring Session Index Browse by Subject About the SA Parliament Hansard on line

The Hon. K.T. GRIFFIN: The Hon. Mr Gilfillan expressed concerns about the effect of the bill in respect of particularly complex or controversial criminal cases which might proceed all the way to the High Court, especially where the defendant is impecunious. As the honourable member said, the High Court will only hear such appeals in cases where it sees fit to grant special leave, and it is fair to say that most of the matters coming before the Magistrates Court would be unlikely to attract such leave, but of course some will. I suggest that such cases would most often be dealt with in one of two ways: either the Magistrates Court would reserve the question of law for determination by the Supreme Court (rather than determining it itself) as provided for in section 43; or, as provided by clause 4 of the bill, a single judge dealing with the matter on appeal would refer the case for hearing and determination by the Full Court.

A case in which it is apparent that a complex issue of law is raised would be the classic case for the use of this power. The process is already available under section 42(3), so that even where a defendant has elected to appeal to a single judge the case may, if complex, be referred to the Full Court. I believe this is not uncommonly done and is often done with the consent of the parties. For this reason, I believe that it is quite unlikely that the four-stage process outlined by the honourable member would occur.

The honourable member also referred to the matter of `criminal defendants on serious charges'. I point out that this bill has no application in the case of major indictable offences, and that in the case of minor indictable offences it is for the defendant to elect whether to be tried summarily or in a superior court.

The Hon. K.T. GRIFFIN: Yes, and it will remain so. I also suggest that, in the case of an impecunious defendant facing a legally complex and controversial prosecution worthy of the attention of the High Court, legal aid would be likely to be available in many cases. For all these reasons, I believe the bill is unlikely to lead to the evils feared by the honourable member.

The Hon. Mr Gilfillan also asked how often at present the right to elect for the appeal to be heard directly by the Full Court is exercised by appellants. It appears that no statistical record is kept by the court, but in its experience the event is so rare that the figure can be estimated at less than 1 per cent. I thank all members for their support for the second reading of the bill.

The Hon. IAN GILFILLAN: I would like to thank the Attorney for stressing the matters raised in my second reading contribution. If not exactly statistically precise data, his answer to the question as to how many appeals have taken place, as I understood it, was that it was less than 1 per cent. That really puts it in some context, that my concern is minute enough not to be worthy of any further concern by us. With that, and because of the other explanations he made, I indicate that the Democrats' concerns have been put to rest. We will support the bill through its remaining stages.